Dr. Fred Logue:

It is hard to understand section 249(10). I do not really understand what the restrictions are, to be honest. You can read them in a worst case scenario way where you would have to be materially affected by it or you would be very limited to the grounds you could take, or you could read it in a different way where, essentially, as with the status quo, if you made a submission you can take a judicial review. First, it would be important to clarify that. Second, the draft Bill does not really map onto the Aarhus Convention. Part 9 will implement Article 9(2), (3) and (4) of the convention. It is relatively complex. There are different types of people and different types of decisions, and different rules will apply to those different combinations of persons and decisions. The principle is that there is a fairly limited right of judicial review in respect of major decisions that are likely to have a significant effect on the environment. That is a limited set of the public but they have a fairly broad right of access to justice.

For other environmental decision-making, which would include regular planning permissions, criteria can be put in place. The problem is that the criteria are limited by two factors, namely, the provisions have to ensure wide access to justice and they also have to comply with Article 47 of the charter. They have to be done for public interest reasons and there has to be necessity and proportionality. I am not seeing that in the Bill. I cannot understand what they are trying to do. In particular, we reached a legal certainty in the past year or two where many of the key concepts of standing and of costs have been clarified by the courts, where there is much more stability in this issues. They are kind of being opened up again. When these are opened up, people will challenge them. That could lead to satellite litigation. A poor procedure can make a weak case strong.

I would be quite concerned about what is in there that does not comply with the Aarhus Convention. I provided a table that would help with that analysis if the Department would fill it out.